Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Argument recap: Statutory text vs. tradition and experience: May a federal district court tax the cost of translating written documents?

Posted Wed, February 22nd, 2012 4:01 pm by Brian Wolfman

As you probably do not recall (or never knew), in Taniguchi v. Kan Pacific Saipan, the Court is considering whether 28 U.S.C. § 1920(6) — which authorizes district courts to tax as costs “compensation of interpreters” — allows a court to award costs for the translation of foreign-language documents into English. The Ninth Circuit below held that the term “interpreters” includes people who translate written documents as well as those who do oral translation.

Taniguchi, by contrast, argues that only oral translation costs can be taxed under the standard dictionary definition of “interpreter.” At oral argument yesterday, the war between pragmatism and textualism started right after Taniguchi’s counsel, Michael Fried, took to the podium. Justice Sotomayor interrupted just two sentences into Fried’s argument. Sure, she acknowledged, the term “interpreter” most naturally involves oral translation, but it could include translation of written documents, and because courts have been awarding document translation costs for seventy years, “why shouldn’t that be enough for us? … Why should we muck with what works?”

Justice Breyer (no surprise here) brought Fried back to the pragmatic view, noting that a large amount of document translation is needed in cases filed in Puerto Rico. The courts there, he explained, think that it is “better to have [document translation] paid by the loser than to have it paid by the winner. So that’s been the common practice.” Justice Breyer did not explain why a loser-pays rule is “better.”

My favorite line from Fried’s argument came in another exchange with Justice Scalia. Fried pointed out that most dictionaries are on his side, with only Webster’s Third arguably supporting Kan Pacific’s broad definition of “interpreter.” Not happy with Fried’s (very small) concession, Justice Scalia added that Webster’s Third is “not a very good dictionary,” noting that it wrongly defines “imply” to mean “infer” and “infer” to mean “imply.” “It does, your Honor,” agreed Fried.

The Court heard next from Kan Pacific’s counsel, Dan Himmelfarb. After a brief discussion of how the term “interpreter” can have both a narrow and broad meaning, Justice Scalia pounced: Doesn’t the person who translates War and Peace into English, get a “trans.,” not an “int.,” next to her name on the inside front cover? Sure, Justice Scalia, Himmelfarb explained, that’s the narrow use of the term — a translator of written documents — but not the one used in Section 1920(6).

As Justice Scalia continued his questioning, Himmelfarb deftly made his basic pitch, that “the text of the statute … permissibly bears two possible meanings. That being the case, it is a legitimate enterprise for the Court to say which makes sense, which is most likely that Congress would have intended in this particular context.” That’s the crux of his argument in a nutshell; it is backed by the practice of most courts to have addressed the issue; and it was perfectly aimed at the pragmatic, “it-works-in-the-real-world” views already expressed by Justices Sotomayor and Breyer. Well done.

Next up was Justice Alito, who pulled out the venerable American Rule – that the parties generally bear their own costs unless Congress specifically says otherwise. In light of that Rule, he asked, why shouldn’t we take a narrow view of an interpretive question under Section 1920? Himmelfarb responded that the Rule doesn’t matter because Congress has authorized the taxing of costs since the mid-1800’s. That’s the same argument that appears in Kan Pacific’s brief, and it doesn’t move me. Yes, cost-shifting has been around for a good while, but the types of costs that may be shifted remain few to this day—that is, the American Rule is still the governing, background principle.

Justice Kagan’s contribution may prove the most telling. She wasn’t pushing a rigid textualism, but a practical understanding of Congress’s handiwork. Even if the American Rule isn’t controlling, wasn’t Kan Pacific asking for an “interpretive rule” that “errs on the side of breadth rather than narrowness?” And when Himmelfarb responded that dictionaries support both sides, she responded simply and cleanly: “[T]the dictionaries themselves tell us that one usage is far more common than the other.” When she followed up a little while later by asking whether the U.S. Code ever uses “interpreter” to refer clearly to a written translator, Himmelfarb admitted that he couldn’t help her out.

So, how will it all shake out? Justices Sotomayor and Breyer appear to side with Kan Pacific, probably joined by Justice Ginsburg, who, like Justice Breyer, seemed to think that distinguishing between oral and written translation is artificial and ill-suited to actual litigation needs. Justice Kennedy asked a few questions, but didn’t really stake out a position.

Taniguchi can count on Justices Scalia, Alito, and (I’m pretty sure) Kagan. And though Justice Thomas did not (of course) say anything, his textualist predilections ought to put him in the same camp. The Chief Justice was a bit hard to read, but he expressed concern about shifting large document translation costs to the losing party and suggested that it is “more natural and common to speak of someone interpreting oral communication and someone translating written [communication].” So, I’m guessing he’s voting for Taniguchi as well.

So, I’ll stick with my original prediction: Taniguchi wins on the text of the statute, with a smidgen of the American Rule thrown in for good measure.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]